2006 PLP 21 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment dated 15-7-2004 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, in a civil revision arising out of a suit for declaration and permanent injunction involving the dispute in respect of a contract.

2. In pursuance of the advertisement of Pakistan Railways inviting tenders for grant of franchise right of sale of bottled water at the railway stations and in the trains on regional basis, the petitioner and respondent No.1 offered bids which being not to the expectation of the official respondents, were required to be raised and the petitioner accordingly raised his bid. The grievance of the petitioner was that he was sole bidder and the official respondents having principally accepted the revised bid offered by him, have given him assurance for execution of contract but subsequently, awarded the contract to respondent No.1 on 5-6-2004. The relief sought by the petitioner in the suit for declaration and permanent injunction filed by him in the Civil Court at Lahore, was firstly that respondents Nos.2 to 4 may be restrained from awarding contract to respondent No.1 and secondly, they be directed to execute agreement in his favour on the basis of offer made by him as sole bidder. The petitioner also moved an application under Order XXXIX, rules 1 and 2, C.P.C. read with section 151, C.P.C. in the suit for temporary injunction but having failed to get the temporary relief filed an appeal and a learned Additional District Judge at Lahore, after preliminary hearing of the appeal on 29-11-2004 while issuing notice to the respondents also suspended the operation of contract. The respondent No.1, being aggrieved of this order, filed a civil revision in the Lahore High Court, Lahore, and a learned Judge in Chambers having come to the conclusion that the order of suspension of contract at the preliminary hearing of the appeal was not justified, allowed the civil revision and by setting aside the order impugned therein, directed the Appellate Court for decision of the application under Order XXXIX, rules 1 and 2, C.P.C. after hearing the parties. The petitioner being aggrieved of the above order passed by the High Court in the civil revision has brought this petition before this Court.

3. Learned counsel for the petitioner has contended that the order passed by the learned Additional District Judge in appeal was an ad interim order which being not covered by the expression `case decided' would not be revisable, therefore, civil revision was not maintainable and the interference of the High Court in the matter in its revisional jurisdiction was not legal. Messrs Hamid Khan and Abbas Mirza, learned counsel representing the respondents on the other hand, have submitted that the Appellate Court while passing an interim order in appeal has virtually passed final order and practically decided the lis before it at limine stage without notice to the respondents. The learned counsel added that the tenor of the order impugned in the civil revision, would definitely bring it within the expression `case decided' which was evidently an improper and fanciful order, therefore, the High Court in exercise of its revisional powers of superintendence and control over the judicial acts and omissions of the subordinate Courts, has rightly interfered in the matter.

4. We having heard the learned counsel for the parties at length have also gone through the orders of the Appellate Court and that of the High Court impugned in the present petition. There is no cavil to the A proposition that an order which does not qualify the test of `case decided' cannot be challenged in revisional jurisdiction under section 115, C.P.C. and normally a revision petition against an interim order is not maintainable but an interim order which is passed after considering the facts, if is found perverse or suffering from jurisdictional defect, the revisional Court may in the interest of justice, interfere in such order. The expression `case decided' is not necessary confined to the final order rather it may, in the peculiar facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of judicial mind. It may be seen that an order passed in an improper exercise of jurisdiction if is not interfered, it may lead to injustice or hardship and if an interim order by its inception, appears to be a final order and also has an effect of final order, such an order can be corrected in the revisional jurisdiction. The Court at the time of preliminary hearing of a matter, is expected to also safeguard the interest of the party which is not present before the Court and should not pass an order at this stage which may cause inconvenience to other parties or public in general. The learned counsel for the petitioner stated that presently there is no proper and satisfactory arrangement of supply of bottled water in the railways system and due to the non-availability of facility of bottled water in trains and at the railway stations, the passengers are suffering and facing hardships. Learned counsel for the petitioner has not been able to satisfy us that in the peculiar circumstances of the present case, the order of suspension of the operation of contract passed by the learned Additional District Judge in appeal at the time of preliminary hearing, could justifiably be termed as an interim order and the High Court could not correct the error in the order in its revisional jurisdiction. Be that as it may, we without going into the controversial question regarding the maintainability of the revision petition against such an order or expressing on merits in either way, would prefer to dispose of this petition with direction that instead of consuming time on the litigation on the ancillary matter, the main appeal should be decided to avoid inconvenience to the railways system. The learned counsel for the parties have also agreed for early disposal of appeal. We, therefore, keeping in view the nature of dispute and circumstances of the case, set aside both the orders passed by the learned Additional District Judge in appeal as well as by the High Court in civil revision and direct that the main appeal shall be decided by the B learned District Judge, Lahore. The parties shall appear before the District Judge on 11-4-2005, who after hearing them, shall decided the whole matter without further delay and pending disposal of appeal, the contract shall not operate. This petition in the above terms, stand disposed of. M.H./N-59/S Order accordingly.